State v. FaulknerÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-319
Filed: 15 November 2016
Person County, Nos. 13 CRS 154 - 155, 14 CRS 50889 - 90
STATE OF NORTH CAROLINA, Plaintiff,
v.
CHARLES DREW FAULKNER, Defendant.
Appeal by defendant from judgment entered 16 October 2015 by Judge W.
Osmond Smith, III in Person County Superior Court. Heard in the Court of Appeals
6 October 2016.
Attorney General Roy Cooper, by Assistant Attorney General Christine Wright,
for the State.
Patterson Harkavy LLP, by Paul E. Smith, for defendant-appellant.
ZACHARY, Judge.
Charles Drew Faulkner (defendant) appeals from judgments revoking his
probation and activating the corresponding sentences that were imposed upon his
convictions of criminal offenses in 2013 and 2014. Defendant argues on appeal that
the trial court erred by allowing him to represent himself without first determining
that his request to proceed pro se was knowing and voluntary. We conclude that the
trial court properly conducted the inquiry required under N.C. Gen. Stat. § 15A-1242
(2015), and thus did not err by allowing defendant to represent himself at the
probation revocation hearing.
STATE V. FAULKNER
Opinion of the Court
I. Factual and Procedural History
On 14 August 2013, defendant pleaded guilty to the sale of marijuana,
possession of marijuana with intent to sell or deliver, possession of drug
paraphernalia, and possession of a firearm by a convicted felon. The drug-related
charges were consolidated and defendant was sentenced to a term of 10-21 months’
imprisonment; the sentence was suspended and defendant was placed on supervised
probation for 24 months. Defendant received a consecutive suspended sentence of
17-30 months’ imprisonment for possession of a firearm by a felon.1 On 20 November
2014, defendant pleaded guilty to possession of marijuana with intent to sell or
deliver, possession of drug paraphernalia, and maintenance of a dwelling for the
purpose of selling marijuana. The court imposed two consecutive sentences of 6-17
months imprisonment, which were suspended, and defendant was placed on
probation for a period of 36 months.
On 19 May 2015, defendant’s probation officer filed violation reports alleging
violations by defendant of the terms of the probationary sentences imposed in 2013,
including his commission of the offenses to which he pleaded guilty in 2014, and being
in arrears on court-ordered payments. It was also alleged that defendant had violated
the terms of the 2014 probationary sentences in several respects, including having
1 Defendant later filed a motion for appropriate relief on the grounds that his prior record
level was miscalculated in the judgment sentencing him for possession of a firearm by a felon.
Defendant’s motion was granted and he was resentenced to a term of 14-26 months’ for possession of
a firearm by a felon.
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Opinion of the Court
tested positive for the presence of marijuana. On 8 June 2015, defendant appeared
in court on the charges of violating the terms of his probation. The trial court
informed defendant that if he were indigent he would qualify for court-appointed
counsel and that he also could hire an attorney or represent himself. After discussing
the issue with defendant, the trial court granted defendant’s request to represent
himself with the assistance of standby counsel.
On 30 August 2015, the trial court conducted a probation revocation hearing.
Defendant, who appeared pro se, did not offer evidence or raise any arguments
pertaining to the substantive merits of the probation violation reports. Instead,
defendant relied solely on the argument that he was a “Moorish National” or
“sovereign citizen” and therefore was not subject to the court’s jurisdiction. At the
end of the hearing, the trial court found that defendant had violated the terms of his
probation. The court activated the suspended sentences previously imposed on
defendant and consolidated the judgments into two consecutive sentences of 14 - 26
months’ followed by 6 -17 months’ imprisonment. Defendant gave oral notice of
appeal.
II. Standard of Review
On appeal, defendant contends that the trial court erred by allowing him to
represent himself without making a valid determination that defendant’s decision to
proceed pro se was knowing, intelligent, and voluntary. We do not agree.
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STATE V. FAULKNER
Opinion of the Court
It is well-established that “[t]he right to counsel provided by the Sixth
Amendment to the United States Constitution also provides the right to self-
representation.” State v. White, 349 N.C. 535, 563, 508 S.E.2d 253, 270-71 (1998)
(citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), and N.C. Const.
art. I, § 23). “Before allowing a defendant to waive in-court representation by counsel,
however, the trial court must insure that constitutional and statutory standards are
satisfied.” State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992). “[I]t is
error for a trial court to allow a criminal defendant to release his counsel and proceed
pro se unless, first, the defendant expresses ‘clearly and unequivocally’ his election to
proceed pro se and, second, the defendant knowingly, intelligently, and voluntarily
waives his right to in-court representation.” White, 349 N.C. at 563, 508 S.E.2d at 271
(citation omitted).
Under North Carolina law, “ ‘Once a defendant clearly and unequivocally
states that he wants to proceed pro se, the trial court . . . must determine whether the
defendant knowingly, intelligently, and voluntarily waives the right to . . .
representation by counsel.’ A trial court’s inquiry will satisfy this constitutional
requirement if conducted pursuant to N.C.G.S. § 15A-1242.” State v. Moore, 362 N.C.
319, 322, 661 S.E.2d 722, 724 (2008) (quoting Thomas, 331 N.C. at 674, 417 S.E.2d at
476). N.C. Gen. Stat. § 15A-1242 provides as follows:
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
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Opinion of the Court
after the trial judge makes thorough inquiry and is
satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance
of counsel, including his right to the assignment of counsel
when he is so entitled;
(2) Understands and appreciates the consequences of this
decision; and
(3) Comprehends the nature of the charges and proceedings
and the range of permissible punishments.
“We review a trial court’s decision to permit a defendant to represent himself
de novo.” State v. Garrison, __ N.C. App. __, __, 788 S.E.2d 678, 679 (2016) (citing
State v. Watlington, 216 N.C. App. 388, 393-94, 716 S.E.2d 671, 675 (2011)).
III. Discussion
Defendant argues that the trial court committed reversible error by allowing
him to proceed pro se at the probation revocation hearing without first determining
that defendant’s decision was knowing, intelligent, and voluntary. Analysis of this
issue is best understood by reviewing the colloquy between the trial court and
defendant, which is set out below:
PROSECUTOR: . . . Charles Drew Faulkner. It’s on for a
first appearance for his probation violation. Needs to be
advised.
DEFENDANT: For the record, let the record show I’m
Charles Drew Faulkner. I’m Moorish American National.
THE COURT: Please stand, sir. You’re charged with
violating probation. If you were to be found in violation, you
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Opinion of the Court
could have probation revoked. Your suspended sentences
are 10 to 21 months, 14 to 26 months, 6 to 17 months and
6 to 17 months. Those are the sentences you could possibly
be required to serve if you were found in violation and
subject to revocation. Because of that, you’re entitled to be
represented by a lawyer. If you desire a lawyer and cannot
afford one, the Court will appoint a lawyer to represent you
at no cost to you at this time. An appointed lawyer is not
necessarily free, in that if you were to be found in violation
of probation, one of the conditions of judgment would be
that you be required to reimburse the State for the value of
your court-appointed attorney’s services. You have the
right to represent yourself, retain a lawyer to represent you
or to apply for a court-appointed lawyer. Do you
understand those matters, sir?
DEFENDANT: Yes, I understand.
THE COURT: What do you want to do about a lawyer?
DEFENDANT: Represent myself.
THE COURT: All right. The law requires me to have
additional discussion with you. Do you understand if you
choose to represent yourself, that I may not serve as a legal
adviser to you?
DEFENDANT: I understand.
THE COURT: That you would be expected to know and
follow the rules and procedures that would be applicable as
if you had a lawyer. Do you understand that?
DEFENDANT: Yes.
THE COURT: At a probation violation hearing, the State’s
not required to prove violations beyond a reasonable doubt,
but only to the reasonable satisfaction of a judge. Do you
understand that?
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STATE V. FAULKNER
Opinion of the Court
DEFENDANT: Yes. Can you state your jurisdiction for the
record?
THE COURT: Further, do you understand that there might
be things about the law that you don’t understand because
you’re not schooled in law? There might be things that you
couldn’t take advantage of that would be to your benefit if
you knew about. If you choose to represent yourself, you
are, in effect, understanding all the circumstances you
have, you are knowing the consequences and you further
understand there might be things about the law that you
can’t use to your benefit? Do you understand that?
DEFENDANT: I don’t.
THE COURT: There may be things about the law and
procedures in probation violations. If you don’t know those
things . . . there might be some rights that you would lose
or waive or give up or not be able to take advantage of.
Sometimes people even refer to them as technicalities. So
do you understand that if you choose to represent yourself,
and you don’t know something about the law, then that’s
just the way you find yourself. Do you understand that?
DEFENDANT: No.
THE COURT: Do you have any questions about that?
DEFENDANT: No.
THE COURT: Do you want to represent yourself?
DEFENDANT: I would ask to have standby counsel.
THE COURT: You'd like to have standby counsel?
DEFENDANT: Yes.
THE COURT: Then do you understand if you choose to
represent yourself, I’m required to have this conversation
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STATE V. FAULKNER
Opinion of the Court
with you about your decision to be sure that you
understand[.] . . . I don’t have to decide whether it's a good
decision, but that you understand your decision to
represent yourself. So knowing all that you know about
yourself, the circumstances that you find yourself in, the
potential consequences, everything I’ve discussed with you
and everything else that you know about your situation,
you choose now to give up your rights to a lawyer and
represent yourself, but you request standby counsel. Is that
right?
DEFENDANT: Yes, sir.
THE COURT: All right. Have the defendant sign a waiver
of all counsel. This is a document agreeing to what you just
said to me.
...
THE COURT: The Court has complied with 15A-1242. The
defendant should be allowed to represent himself as he has
requested. Further, pursuant to 15A-1243, the defendant’s
request to have standby counsel appointed to assist him
when called upon and to bring to the Judge’s attention
matters favorable to the defendant upon which the Judge
should rule upon his own motion is granted. That is,
defendant’s request for standby counsel is granted.
...
DEFENDANT: Could you state your jurisdiction for the
record, sir?
THE COURT: I think I understood your question. But
would you say it a little slower and clearer?
DEFENDANT: Would you state your jurisdiction for the
record, sir?
THE COURT: Yes, sir. I’m a Superior Court Judge.
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STATE V. FAULKNER
Opinion of the Court
DEFENDANT: I didn’t ask what kind of judge you were.
THE COURT: You can move . . . on to the next case.
In the trial court’s discussion with defendant, the court explained the “nature
of the charges and proceedings and the range of permissible punishments” and
informed defendant of “his right to the assistance of counsel, including his right to
the assignment of counsel when he is so entitled,” as required by N.C. Gen. Stat. §
15A-1242. In response, defendant “clearly and unequivocally” asked to represent
himself. The trial court then informed defendant that (1) if defendant represented
himself, the trial court would not serve as a legal adviser to defendant; (2) if defendant
proceeded pro se he would be expected to know and follow the rules and procedures
of court; and (3) that at a probation violation hearing, the State is not required to
prove violations beyond a reasonable doubt, but only to the reasonable satisfaction of
the court. Defendant indicated that he understood each of these warnings regarding
the consequences of representing himself. We conclude that the trial court’s inquiry
of defendant met the standard set out in N.C. Gen. Stat. § 15A-1242 and that the trial
court did not err by allowing defendant to proceed pro se.
We note that this conclusion is also supported by our jurisprudence
interpreting N.C. Gen. Stat. § 7A-457 (a) (2015), which provides in relevant part that:
An indigent person who has been informed of his right to
be represented by counsel . . . may, in writing, waive the
right to in-court representation by counsel[.] . . . Any
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STATE V. FAULKNER
Opinion of the Court
waiver of counsel shall be effective only if the court finds of
record that at the time of waiver the indigent person acted
with full awareness of his rights and of the consequences
of the waiver. In making such a finding, the court shall
consider, among other things, such matters as the person’s
age, education, familiarity with the English language,
mental condition, and the complexity of the crime charged.
N.C. Gen. Stat. § 7A-457 requires the trial court to find “that at the time of
waiver, the defendant acted with full awareness of his rights and of the consequences
of the waiver. . . . This is similar to the inquiry required under N.C.G.S. § 15A-1242
and may be satisfied in a like manner.” State v. Heatwole, 344 N.C. 1, 18, 473 S.E.2d
310, 318 (1996). Accordingly, in determining whether the trial court properly allowed
defendant to represent himself, it is appropriate to consider the defendant’s “age,
education, familiarity with the English language, mental condition, and the
complexity of the crime charged” as set out in N.C. Gen. Stat. § 7A-457. In this case,
the record indicates that defendant was 23 years old, spoke English, had a G.E.D.
degree, had attended college for one semester, and had no mental defects of record.
In addition, there were no factual or legal complexities involved in the determination
of whether defendant had violated his probation. The alleged violations -- defendant’s
conviction of other offenses while on probation, testing positive for the presence of
marijuana, and being in arrears on court-ordered payments -- were easily established
by means of the official records of the defendant’s 2014 convictions and the testimony
of defendant’s probation officer. Moreover:
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STATE V. FAULKNER
Opinion of the Court
“A proceeding to revoke probation [is] often regarded as
informal or summary, and the court is not bound by strict
rules of evidence. An alleged violation by a defendant of a
condition upon which his sentence is suspended need not
be proven beyond a reasonable doubt. All that is required
is that the evidence be such as to reasonably satisfy the
judge in the exercise of his sound discretion that the
defendant has violated a valid condition upon which the
sentence was suspended. The findings of the judge, if
supported by competent evidence, and his judgment based
thereon are not reviewable on appeal, unless there is a
manifest abuse of discretion.”
State v. Williams, 230 N.C. App. 590, 597, 754 S.E.2d 826, 830 (2013) (quoting State
v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000)), disc. review denied,
367 N.C. 298, 753 S.E.2d 670 (2014). As a result of the relative informality of and the
lower burden of proof at a probation revocation hearing, defendant’s decision to
represent himself did not require defendant to navigate complex evidentiary or
procedural rules. We conclude that the inquiry conducted by the trial court in this
case complied with N.C. Gen. Stat. § 15A-1242, that the factors set out in N.C. Gen.
Stat. § 7A-457 also support the court’s decision, and that the trial court did not err by
allowing defendant to represent himself.
Defendant’s argument for a contrary result is primarily based upon the fact
that during his colloquy with the trial court, defendant twice indicated that he did
not understand a statement by the trial court. The relevant excerpt from the
transcript is as follows:
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STATE V. FAULKNER
Opinion of the Court
THE COURT: At a probation violation hearing, the State’s
not required to prove violations beyond a reasonable doubt,
but only to the reasonable satisfaction of a judge. Do you
understand that?
DEFENDANT: Yes. Can you state your jurisdiction for the
record?
THE COURT: Further, do you understand that there might
be things about the law that you don’t understand because
you're not schooled in law? There might be things that you
couldn’t take advantage of that would be to your benefit if
you knew about. If you choose to represent yourself, you
are, in effect, understanding all the circumstances you
have, you are knowing the consequences and you further
understand there might be things about the law that you
can’t use to your benefit? Do you understand that?
DEFENDANT: I don’t.
THE COURT: There may be things about the law and
procedures in probation violations. If you don’t know those
things . . . there might be some rights that you would lose
or waive or give up or not be able to take advantage of.
Sometimes people even refer to them as technicalities. So
do you understand that if you choose to represent yourself,
and you don’t know something about the law, then that’s
just the way you find yourself. Do you understand that?
DEFENDANT: No.
THE COURT: Do you have any questions about that?
DEFENDANT: No.
Defendant contends on appeal that because he twice indicated that he did not
understand a statement by the trial court, the trial court’s determination that
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STATE V. FAULKNER
Opinion of the Court
defendant’s waiver of counsel was knowing, intelligent, and voluntary was erroneous.
We conclude that defendant’s argument lacks merit.
First, the statements about which defendant indicated confusion were not
essential to the trial court’s inquiry. The two questions to which defendant answered
“No” when he was asked whether he understood consisted of reminders by the trial
court that defendant was not a lawyer and therefore might not be aware of all of the
legal rules applicable to his case. However, the trial court asked other questions that
established defendant’s understanding of the most important consequences of self-
representation: that the trial court would not provide legal assistance to defendant,
that defendant would be held to the same standards as a litigant with legal
representation, and that the burden of proof in a probation revocation case was lower
than that in a criminal trial and required only proof to the judge’s satisfaction. We
conclude that the trial court’s decision to allow defendant to represent himself would
have been valid even if the court had omitted these questions.
In addition, “[i]t is axiomatic that ‘it is within a trial court’s discretion to
determine the weight and credibility that should be given to all evidence that is
presented during the trial.’ ” Don’t Do It Empire, LLC v. Tenntex, __ N.C. App. __, __,
782 S.E.2d 903, 910 (2016) (quoting Clark v. Dyer, __ N.C. App. __, __, 762 S.E.2d
838, 848 (2014), cert. denied, 368 N.C. 424, 778 S.E.2d 279 (2015)). Thus, the trial
court could properly evaluate the credibility of defendant’s contention that he did not
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STATE V. FAULKNER
Opinion of the Court
understand one or more of the trial court’s statements. In this regard, the trial court
was also allowed to consider the fact that defendant consistently asserted that
because he was a “Moorish National” or “sovereign citizen” he was not subject to the
court’s jurisdiction.
“[S]o-called ‘sovereign citizens’ are individuals who believe they are not subject
to courts’ jurisdiction[.] . . . [C]ourts repeatedly have been confronted with sovereign
citizens’ attempts to delay judicial proceedings, and summarily have rejected their
legal theories as frivolous.” United States v. Davis, 586 Fed. Appx. 534, 537 (11th
Cir. 2014), adopted by, relief dismissed at 2015 U.S. Dist. LEXIS 118200 (N.D. Ga.
2015). The courtroom behavior of adherents to the “sovereign citizen” philosophy is
sometimes frustrating to trial judges:
The sovereign citizen typically files lots of rambling,
verbose motions and, in court proceedings, will often refuse
to respond coherently to even the simplest question posed
by the Court. Each question by the judge is volleyed back
with a question as to what is the judge’s claim and by what
authority is the judge even asking a question. . . . In
proceedings, the observant sovereign citizen clings
doggedly to the sovereign citizen script[.] . . . For the most
part, the defendant’s statements to the Court are
gibberish.
United States v. Cartman, 2013 U.S. Dist. LEXIS 79137 *3 (N.D. Ga. 2013), aff'd, 607
Fed. Appx. 888 (11th Cir. Ga. 2015). A defendant’s contention that he “does not
understand” the proceedings is a common aspect of a “sovereign citizen” defense. For
example, in State v. Mee, 233 N.C. App. 542, 756 S.E.2d 103 (2014), the defendant
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STATE V. FAULKNER
Opinion of the Court
challenged the court’s jurisdiction, asserting that he was “a sovereign from [Moorish]
descent” and a “free indigenous man” with rights under “the United Nations
Declaration of Rights of Indigenous Peoples.” When the trial court tried to determine
whether the defendant wanted appointed counsel, the defendant repeatedly claimed
that he understood nothing about the proceedings. On appeal, this Court upheld the
trial court’s ruling that the defendant had forfeited the right to counsel, noting the
trial court’s statement that:
THE COURT: . . . [T]he Court finds as a fact that Mr. Mee
is intentionally disrupting these proceedings and
intentionally trying to impede his trial. And that was
apparent from his demeanor yesterday when I saw him. . .
. So despite Mr. Mee’s protestations that he does not
understand these proceedings, the Court is of the opinion
that he understands these proceedings very well, and just
is not recognizing the Court[.] . . . He’s obstructing these
proceedings.
Mee, 233 N.C. App. at 559, 756 S.E.2d at 112-113. Similarly, in United States v.
Rowell, 2016 U.S. Dist. LEXIS 134510 *7, adopted by 2016 U.S. Dist. LEXIS 134511
(E.D. Wis. 2016), the defendant, who claimed to be “a citizen of the Moorish Republic
Nation,” represented himself at trial. On appeal, the court held that the defendant
was competent to waive counsel, notwithstanding the fact that the defendant had
claimed not to understand the charges against him:
. . . Mr. Ali Bey has chosen to proceed pro se and made his
jurisdictional arguments without the assistance of counsel.
Based on my in-court interactions with Mr. Ali Bey, I have
concluded that he is intelligent, aware of his surroundings,
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Opinion of the Court
and cognizant of the adverse consequences that can attend
self-representation. . . . To be sure, at times Mr. Ali Bey
asserted that he did not understand the charges against
him or the penalties he faced. But his statements stemmed,
from my observation, from his refusal to recognize the
authority of the United States and not from a failure of
comprehension.
We wish to be clear that this Court is not expressing an opinion on the sincerity
of defendant’s claim not to have understood two of the trial court’s questions. Rather,
we are simply noting that the trial court was charged with determining the credibility
of defendant’s statements. We also observe that after defendant indicated that he did
not understand the trial court’s statements, the court gave defendant an opportunity
to ask questions and defendant indicated that he had no questions. We conclude that,
on the facts of this case, the trial court’s determination that defendant had made a
voluntary, intelligent, and knowing waiver of counsel was not invalidated merely
because defendant answered “No” when asked if he understood two of the trial court’s
questions.
Defendant also argues that the trial court failed to inform him of the nature of
the charges and the proceedings and of the possible sentences that might be imposed.
Defendant acknowledges that the trial court reviewed these matters immediately
before asking defendant whether he wished to retain counsel, seek assignment of
counsel, or represent himself. Defendant contends, however, that the court’s
statements on the charges and possible penalties were not valid because the trial
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Opinion of the Court
court did not repeat the same information after defendant asked to proceed pro se.
Defendant cites no authority in support of this argument, and we conclude that
defendant is not entitled to relief on this basis.
Finally, defendant asserts that when he requested that the trial court appoint
standby counsel, defendant “was no longer unequivocally requesting to proceed pro
se.” In support of this position, defendant cites Thomas, in which the defendant
stated that he did not want to proceed pro se or to be represented by counsel, but
instead sought a “hybrid representation” in which the defendant would function as
the “lead attorney” along with assigned counsel. Thomas is inapplicable to the
present case, and defendant cites no authority holding that a defendant’s request for
standby counsel automatically invalidates his otherwise clear and unequivocal
request to proceed pro se.
For the reasons discussed above, we conclude that the trial court did not err by
granting defendant’s request to represent himself at the probation revocation
hearing. Defendant has raised no other challenges to the judgments that activated
his suspended sentences and we conclude that these judgments should be
AFFIRMED.
Judges STROUD and McCULLOUGH concur.
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